New York Times (Sept. 29, 2009)

Editorial ………

An Incomplete State Secrets Fix

One of the ways that the Bush administration tried to avoid accountability for its serious misconduct in the name of fighting terrorism was the misuse of an evidentiary rule called the state secrets privilege. The Obama administration has essentially embraced the Bush approach in existing cases, trying to toss out important lawsuits alleging kidnapping, torture and unlawful wiretapping without any evidence being presented.

The other day, Attorney General Eric Holder Jr. issued new guidelines for invoking the state secrets privilege in the future. They were a positive step forward, on paper, but did not go nearly far enough. Mr. Holder’s much-anticipated reform plan does not include any shift in the Obama administration’s demand for blanket secrecy in pending cases. Nor does it include support for legislation that would mandate thorough court review of state secrets claims made by the executive branch.

The rules, which replace a less formal set of procedures used during the Bush years, establish a high-level review process at the Justice Department before a privilege claim may be invoked in court. Executive agencies will have to persuade a Justice Department committee that disclosure of information would risk “significant harm” to national security.

The new rules instruct the Justice Department to look for ways to avoid shutting down an entire lawsuit and to reject privilege requests motivated by a desire to “conceal violations of the law, inefficiency or administrative error” or to “prevent embarrassment.” The rules sensibly give the attorney general the responsibility to sign off on all state secrets claims.

It remains to be seen whether, and to what extent, the new regimen will succeed in avoiding flimsy claims of secrecy. Much depends on how the rules are interpreted and enforced, and the Justice Department’s willingness to stand up to insistent intelligence agency demands.

One cautionary note: Since assuming office, Mr. Holder has reviewed the administration’s position in ongoing cases and has continued broad secrecy claims of the sort that President Obama criticized when he was running for president. To the extent that legitimate cases get dismissed as a result, Mr. Holder should make sure allegations of government wrongdoing get referred to an agency inspector general, as his new plan requires.

In any event, while more stringent self-policing of executive branch secrecy claims is welcome, it is hardly a total fix. Senator Russ Feingold, a Wisconsin Democrat, noted that without a clear, permanent mandate for independent court review of the administration’s judgment calls, Mr. Holder’s policy “still amounts to an approach of ‘just trust us.’”

If the Obama team is sincere about wanting to end state secrets abuses, it will support the State Secrets Protection Act sponsored in the Senate by Patrick Leahy, the Judiciary Committee chairman, and in the House by Representative Jerrold Nadler, a Democrat of New York. The measure contains safeguards to ensure protection of legitimate secrets. But before ruling on a secrets claim, and possibly dismissing a lawsuit, judges would be required to review the documents or evidence in question instead of just accepting assertions in government affidavits.

The need for such safeguards is not theoretical. Even as Mr. Holder tried to reassure Americans with new written rules, the Justice Department was seeking dismissal of a significant lawsuit over the Bush administration’s extraordinary renditions program based on a blanket claim of national security by Gen. Michael Hayden, the former director of the Central Intelligence Agency.